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October 2022: San Francisco’s OLSE Issues FAQs for Public Health Emergency Leave Ordinance

18 Oct

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Update Applicable to:
All employers with 100 or more employees in the city of San Francisco.

What happened?
In June, San Francisco voters approved Proposition G, which created the Public Health Emergency Leave Ordinance (PHELO). The ordinance requires private employers to provide paid leave to employees for “public health emergencies.” The ordinance took effect on October 1, 2022.

In conjunction with the effective date, San Francisco’s Office of Labor Standards Enforcement (OLSE) issued a Frequently Asked Questions page to assist with applying the new law.

What are the details?
The FAQs cover topics including:

  • Scope of the Ordinance
  • Amount of Leave
  • Use of Leave
  • Payment for Leave
  • Notice and Posting
  • Employer Records

Scope of the Ordinance

PHELO applies to employers with 100 or more employees worldwide. The OLSE states that if the number of employees fluctuates above and below 100 in a year, employers should calculate business size based on “the average number of employees per pay period during the preceding calendar year.”

The FAQs also clarify that the ordinance does not cover employees who work at San Francisco International Airport (SFO) as it is outside the geographic boundaries of San Francisco.

Amount of Leave
The FAQs specify the calculation of leave for employees as follows:

  • Full-time regular or fixed schedule employees are entitled to the number of hours over a one-week period that the employee regularly works, not to exceed 40 hours through December 31, 2022. As of January 1, 2023, such employees should get the number of hours the employee would work in two weeks, not to exceed 80 hours.
  • Part-time employees or variable hours employees are entitled to the number of hours equal to the average number of hours over a one-week period that the employee was scheduled over the previous calendar year through December 31, 2022. As of January 1, 2023, such employees would be entitled to the average number of hours over two weeks worked during the previous calendar year.

Clarification of Interaction with COVID-19 SPSL
The OLSE also clarifies in the FAQs the interaction between PHELO and statewide COVID-19 Supplemental Paid Sick leave (SPSL), stating that employers that provide SPSL are permitted to offset that leave from the required PHELO entitlement, e.g., the amount of PHELO that an employer must provide is reduced for every hour of SPSL that the employee takes after October 1, 2022.  

Use of Leave
The FAQs state that an employer may require a doctor’s note or other documentation to confirm an employee’s status as a vulnerable population member for the use of the leave. However, an employer may not otherwise require disclosing health information for an employee to use PHELO.

Payment of Leave
The FAQs clarify that PHELO is to be compensated in the same manner as paid sick leave, which provides two options for non-exempt employees, e.g., regular rate of pay for the workweek the leave is used or by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

For exempt employees, PHELO pay must be calculated similarly as the employer calculates wages for other forms of paid leave time.

Notice and Posting
The OLSE specifies that employers must post a notice informing employees of their rights under the ordinance. To that end, the OSLE has published a notice on its website.

Employer Records
As to recordkeeping requirements, employers must retain records documenting hours worked by employees and Public Health Emergency Leave taken by employees for four years.

For more information, please see the links below:

Frequently Asked Questions

OSLE Notice

Article

What do employers need to do?
Employers should review the links provided above and refer to the FAQs regarding the new leave law that went into effect on October 1, 2022.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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